August 26, 2011 Leave a comment
A whirlwind of changes has hit the Family Medical Leave Act (FMLA) and with changes comes new hassles and new understanding. Below are some questions that many managers have asked me to navigate through the ever challenging FMLA.
What if I find out that an employee is working another job or has been interviewing or inquiring about other jobs while on leave?
There is no prohibition in the FMLA against employees having a second job.
In most cases, the only way to deal with the second job situation is to have a uniform policy regarding moonlighting or other work. Then the employee may be disciplined or discharged same as any other employee who violates the policy.
However, if you review the employee’s medical certification form and it says that the employee cannot perform the specific tasks he or she has been observed performing for the other employer, then the employee could be subject to termination for fraud.
What about other activities that are inconsistent with the FMLA leave restrictions?
The FMLA does not require employees who are on leave to lie in bed all day. Just because the employee has been seen at the mall or coaching a football team does not automatically sound the FMLA fraud alarm.
As mentioned above, if the activity is inconsistent with the medical restrictions there may be a fraud situation which you can handle according to your fraud prohibitions.
Finally, note that there is no prohibition under the FMLA on employees either looking for other work or having other jobs. Furthermore, there is nothing wrong under most employers’ moonlighting policies with an employee looking for work or even applying for work with another organization. So be sure the employee has actually been hired and is working for the other employer before “pulling the trigger” under a “no-moonlighting” policy. There may be a violation of an individual non-compete agreement if the employee applies for work at a particular competing employer during an FMLA leave.
What if we have a layoff while an employee is on FMLA leave?
As long as you can objectively show that employees who are on FMLA leave would have been included in the layoff if they had been at work at the time the reduction decisions were made, then you are entitled to consider and include those who are on FMLA leave in a reduction in force just as you would any other employee. In other words, being on FMLA leave does not entitle an employee to any preferential or “better” treatment than the employee would have received if he or she had not been on FMLA leave.
Make sure, however, that the employee who is on leave is not effectively penalized by your “objective” criteria for the layoff. For instance, if the criteria are based in whole or in part on “individual production levels” for the past 12 months,” you would need to pro rate or otherwise mitigate such criteria to make sure you do not automatically disfavor those who have been on FMLA leave.
Be sure to notify those on FMLA leave of their inclusion in the reduction at the same time that you notify all other employees in their comparative job group. In other words, do not wait until the employee returns from FMLA leave and then say, “Oh, we laid you off a month ago.” Those on FMLA leave should also receive that same COBRA notice, severance package offers, etc., as similar employees who are being laid off from your active workforce.
What if the employee already was on a performance improvement plan, final warning, suspension, etc., at the time of going out on FMLA leave?
In these situations, you should extend the terms of the performance improvement plan or disciplinary action as if the leave had not occurred. For instance, if the employee was on a 90-day performance improvement plan when going out on leave, when the employee returns from leave you should continue the plan, having suspended it during the leave.
Similarly, if the employee was due to serve a 3-day suspension, have the employee serve the suspension as soon as he or she returns from leave just as if the leave had not intervened.